Reflections on the Recent Past: The Framers and Modern-Day Heresies

Tuesday, January 30, 2001

Let’s begin with a little history. In the independent counsel experience, we departed from history, quite willfully, quite intentionally. Sometimes you just say, “Oh! I goofed! I guess I didn’t read my history book very well.” But we knew what we were doing when we embarked in 1978 on an entirely novel path in creating a statutory independent counsel mechanism. This was a constitutional mini-revolution; some pointed to it, but it was not widely seen that way. In fact, it was widely seen as nothing remarkable at all—just a situation of Congress responding to the felt necessities of the time. Isn’t that what Congress sits to do? More specifically, Congress was reacting to what had indeed occurred: the politicization of the Department of Justice under President Nixon, culminating in the Saturday Night Massacre: the firing of Archibald Cox, which of course was preceded by the resignations of the new attorney general, Elliot Richardson, and the deputy attorney general, Bill Ruckelshaus.

Bad Law, Bad Policy

Burdened by those memories, and of Watergate generally and the hemorrhaging of the Department of Justice, Congress decided to strip the attorney general of the United States, and thus, for constitutional purposes, the executive branch, of a historic power that goes back to the founding of the American Republic. The power to carry on the federal law-enforcement function of investigating and bringing criminal prosecutions was a fundamental power of the executive branch itself, vested in the attorney general.

I am very sorry to say that, in certain respects, the Department of Justice conducted itself dishonorably. It stood in the door, as it were, to prevent the truth from coming out.

The independent counsel statute was not only bad law—although the statute was eventually upheld by the Supreme Court as constitutional—but also bad policy. The Department of Justice, for its part, ridding itself of the politicization that had occurred with respect to the criminal division, adamantly opposed the statute’s reauthorization twice in the 1980s. The Department of Justice urged Congress, which had built in a sunset provision in 1978, not to renew it.

Well, why? Why object to an independent investigation? A subtle but important point in terms of our system of separated powers: there is nothing wrong with an independent investigation. We’ve had independent counsels—we used to call them special prosecutors—going all the way back to the rather untidy administration of Ulysses S. Grant. The practice continued through this century, up to and including Watergate. Archibald Cox was, after all, an appointee of Attorney General Elliot Richardson, who then, as a matter of honor, resigned rather than carry out the president’s directive to fire the special prosecutor. Why? Mr. Richardson, in his confirmation hearings, had promised to protect the day-to-day independence of the special prosecutor. But, and this is important, in those same confirmation hearings, while vowing to protect the operational independence of Professor Cox, the attorney general–designate made it absolutely clear that ultimate authority must remain in the attorney general. This was not a Washington power grab. Mr. Richardson said, “I cannot delegate the ultimate authority for prosecutorial decisions away.” Just as in corporate governance, where a board of directors cannot delegate away the powers vested in it by the articles in the by-laws. Likewise, a federal judge cannot delegate away Article III decision-making authority. The board of directors may use mechanisms such as audit committees and the like; so, too, a federal judge may use court-appointed special masters and magistrate judges. Nevertheless, the ultimate decision-making authority must remain with the board or with the judge.

The independent counsel statute was not only bad law—although the statute was eventually upheld by the Supreme Court as constitutional—but also bad policy.

Congress did not heed these lessons from history, from tradition, from our constitutional structure—lessons that were dramatically illustrated by the debates at the Constitutional Convention and in such wonderful, rich, interpretive documents as the Federalist Papers.

The fact that Congress was ignoring these lessons was all the more ironic because, roughly contemporaneously with the independent counsel statutory experiment, Judge Griffin Bell, serving as attorney general during the Carter administration, made a discretionary judgment consistent with the tradition of which we’ve been speaking. He decided that a special prosecutor, an independent counsel, should be appointed to investigate the financial dealings of President Carter. The result of that appointment was a good one for the country. He appointed a Republican, Paul Curran, a former United States attorney in New York, to investigate whether there was any federal criminal wrongdoing in connection with the financing of the Carter businesses in Georgia. By his own more recent accounts, Mr. Curran has stated that President Carter cooperated fully and testified truthfully under oath in his own deposition. He waived all applicable legal privileges, and the result was that, happily for us all and for President Carter and his family, the conclusion was reached that President Carter had engaged in no wrongdoing. I assure you that Paul Curran is to be envied in many respects.

Our investigation yielded cold, hard facts leading to 14 criminal convictions and guilty pleas. These included the felony convictions of the sitting governor of Arkansas, of the former associate attorney general of the United States, and, of course, of the Clintons’ business partners, Jim and Susan McDougal.

Congress, while departing from our constitutional traditions, did evidence a very firm resolve that the facts should come out and should be thoroughly investigated. Congress wanted investigations that would leave no stone unturned, no timidity, no trimming of the sails out of fear of the incumbent administration or out of desire for favor.

And so it was that for the country, and the state of Arkansas, our investigation yielded information: cold, hard facts leading to 14 criminal convictions and guilty pleas. These included the felony convictions of the sitting governor of Arkansas, Jim Guy Tucker; the former associate attorney general of the United States, Web Hubbell; and, of course, the Clintons’ business partners, Jim and Susan McDougal. Most controversially, of course, the investigation led to the referral of charges to the House of Representatives, which in turn resulted in Articles of Impeachment from the House and eventual acquittal in the Senate.

Attacks and Delays

All this fact finding and fact reporting did come at a price. Quite apart from the constitutional tensions created by robbing the attorney general of his or her traditional prerogatives, the independent counsel (and to this I can attest quite personally) was left largely defenseless in the face of the inevitable assaults that were sure to come when the political survival of a president was seen as being at stake. I don’t think there is any serious doubt in this respect that there was a determined, sustained, and ferocious attack on the office where I served and on yours truly.

The Washington Post, not an entirely unabashed admirer of the investigation, condemned in an editorial the independent counsel’s tactics in this respect as "a dishonorable smear campaign." The negative characterization of the independent counsel investigation in the press seriously corroded the public’s confidence in the administration of justice, as has now been chronicled in a variety of sources. For example, Dick Morris’s quite readable book Behind the Oval Office shows that the process of corroding public confidence began years ago.

Not only did the independent counsel structure create these constitutional tensions by ignoring our history, not only did it erode public confidence by unleashing systematic attacks on duly constituted law officers (which could have been foreseen), but it also by design left the independent counsel alone and removed. This removal from the protective mantle and succor of the Department of Justice is important. The Department of Justice, where I have been privileged to serve on two separate occasions, has a great tradition. The department has done vitally important work over the many years of its existence. It stood tall at difficult times, not the least of which were during the civil rights movement in the 1960s and in the effort to restore fundamental principles to our constitutional order and our federal system of law during the 1980s.

However, especially in the later phase of the Whitewater investigation, the relationships between the office where I served and the Department of Justice that I loved deteriorated very badly. I am very sorry to say that, in certain respects, the Department of Justice conducted itself dishonorably. It stood in the door, as it were, to prevent the truth from coming out. This is a serious charge, but it’s one that I feel strongly about, and the requisite facts as they continue to unfold will be there for the world to see.

Consider one example, albeit a controversial one: the interposition of a legally baseless, previously unheard-of protective-function privilege to shield Secret Service agents from testifying before a duly constituted federal grand jury. The Department of Justice was told that this approach was legally without foundation, utterly unprecedented in our law, nowhere articulated by any agency of government, and absolutely foresworn by an honorable director of the Federal Bureau of Investigation, Louis Freeh. But those voices were ignored, based on the attorney general’s personal policy-based determination to represent the groundless position of the Secret Service. The result in the courts was not surprising: the Department of Justice lost at every turn. I argued those matters myself before both the district court and the court of appeals. The effect, while adding to our win column in court, was of course to delay our investigation and to diminish the public’s patience. While the public’s patience was wearing thin, so too was public confidence in the administration of justice. An investigation authorized specifically by the attorney general of the United States was being characterized in the most unflattering of terms.

Accomplishments and Lessons

What was accomplished, then, in addition to the Arkansas phase of the investigation? Under what I must say were difficult operating circumstances, the facts, as horrible as they were, did eventually come to light. So it was that the nation could and did come to its collective judgment, an ultimate judgment about the fitness of the president to continue in office. Whatever one’s view of that process, the point is that the process ordained at the founding worked. It was unpleasant in the extreme, it was embarrassing, it was upsetting—all this and more—but the process worked. In the process we learned, in this unfortunate setting, another important lesson about our constitutional structure: the importance that the founding generation attached to stability.

Again, whatever one’s views of the results of the impeachment process, what is beyond dispute is that there was a structure and process ordained in the Constitution and that, while voices were raised frequently in anger, the issues were resolved and not a single shot was fired. We worked our way through an exasperating and frustrating time, but we emerged intact. I think in the process we learned anew, through the hard taskmaster of experience, that those structures given to us by the founding generation were designed to achieve the all-important values of balance and stability. The enthusiasms of the House were constrained by the supermajority requirement of a two-thirds vote in the Senate in order to remove a duly elected officer from his office. And because consensus was never reached as to remedy, then the structural tilt in favor of the status quo trumped and carried the day.

Compare our experience with that of, say, Italy. Last spring, the coalition government narrowly survived. They had just come into office and what did they face? A vote of confidence! Prime Minister Amato narrowly survived—it is Italy’s 58th government since World War II. They have taken to heart, perhaps overly so, lessons from the ancient Roman Republic, where the consuls were to serve for no more than a single year. Well, Italy is lovely, but this is America and we like stability. Wall Street likes stability, government wants stability—we want stable structures in place and that is what the constitutional structure was designed to achieve. Stability not in an ossifying sense, but as a way to preserve human liberty. So perhaps now as we strive as a free people to relearn these lessons from our glorious constitutional history, we can find ways to be involved.

What I fear is an age of constitutional illiteracy. That’s worrisome. I am now part of a volunteer program in Washington, D.C., where we’re working with public school teachers. We’re trying to help them deepen their understanding of the Constitution and to rekindle their interest in working the Constitution into the curriculum. When I’m involved in that activity, I recall the wonderful words of Benjamin Franklin. As a delegate from his adopted Commonwealth of Pennsylvania, Dr. Franklin had said very little during the Constitutional Convention. He was an octogenarian, he was in poor health, but he had faithfully attended the convention. As he came out of the meeting hall one day, he was approached by one of the leading matrons of the city, who inquired, “Dr. Franklin! What kind of government have you given us!?” Dr. Franklin cheerfully replied, “A Republic, Madam! If you can keep it.”